The rights, privileges, and responsibilities afforded to married individuals in the United States are vast and varied. As a matter of clear public policy, federal, state, and local governments grant married individuals everything from tax breaks to survivorship rights. Gay and lesbian couples across the country have sought to be included in these benefits and obligations. They have seen success in recent years in various state courts and legislatures, including being granted inclusion in marriage in a few, civil unions in some, and domestic partnerships in others. Despite such gains for these couples, 31 states have recently amended their constitutions to specifically deny such recognition. In these states, gay and lesbians are left with no other option than to attempt to contract around their inability to obtain governmental recognition of their unions; Minnesota is currently considering whether to pass a similar amendment.

http://www.freedomtomarry.org/states/

Project 515, based here in Minnesota, has discovered that “most of the rights provided to married couples cannot be replicated by signing legal documents or contracts.”See Still Unequal Under the Law, Project 515 (Nov. 2010). Thus, in states where gay and lesbian unions are not recognized, those couples are simply unable to obtain the same rights. Among such rights is the ability to invoke common law spousal privilege in court, which allows one to stop their spouse from testifying against them and/or allows one to avoid being compelled to testify against one’s spouse. Perhaps even more troubling, however, is that even in the states where gay and lesbians have been granted recognition of their unions, federal law and evidence rules suggest that courts should deny spousal privilege to these couples in all or various circumstances. The astonishing result seems to be that in all 50 states, gay and lesbians can be forced to testify or provide evidence against their partner; it also means that they cannot prevent testimony and submission of evidence by a current or ex partner.

First, it is abundantly clear that there are only two ways to refuse to testify or produce evidence. One is to have a Constitutional or federal statutory excuse, which this analysis will briefly entertain and may very well be the most likely thing to resolve the issues at play in this matter. The other is one of the exceptions as outlined by Fed. R. Ev. 501. In other words, there are absolutely no ways to contract around this right. Therefore, in the states that do not offer gay people the option to participate in marriage, civil unions, or domestic partnerships, there is simply no way to obtain this privilege, outside of a successful Constitutional claim.

Second, in federal criminal and civil federal question cases judges are instructed to decide privilege issues using, “principles of the common law,” and “in the light of reason and experience.”

Third, pursuant to the Erie doctrine, it instructs judges to decide privilege matters in criminal diversity jurisdiction cases, “in accordance with State law.”

And fourth, where there may be questions or conflict surrounding the state and federal law on privilege, it tells judges they should default to letting the evidence in.

These observations have significant implications for gay and lesbian couples in regards to spousal privilege. The balance of this analysis will be split among these last three observations as they relate to gay and lesbian unions in the few states that offer some sort of recognition to them, and a brief consideration of the full faith and credit clause of the U.S. Constitution. The distinction between the two kinds of spousal privilege isn’t as important for this analysis, as the real question is whether these couples can even attempt to invoke the privilege concept to begin with.

Common Law, In Light of Reason and Experience.

As a threshold matter, consider the United States Supreme Court’s view of the federal common law on privilege, in light of reason and experience, according to the Article V Standards that were proposed prior to Congressional adoption of Fed. R. Ev. 501. It speaks volumes of the Court’s view on the matter that Standard 505 was titled, “The Husband-Wife Privilege,” rather than something akin to “Spousal Privilege.” This is very similar to Minnesota Statute 595.02(1)(a) (which is specific to the competency privilege and applies to both civil and criminal cases). It states that, “[a] husband cannot be examined for or against his wife without her consent, nor a wife for or against her husband without his consent…” Under any strict interpretation of this statute, the repeated use of “husband” and “wife” would likely present issues for gay couples.

In analysis of precedent before and after Fed. R. Ev. 501’s adoption, it appears one of the primary concerns in cases where the privilege is invoked is whether the individuals involved were part of a valid marriage. United States v. Mathis, 559 F.2d 294 (5th Cir. 1977). And of special importance to gay couples is the Eighth Circuit’s opinion in United States v. White, where the court specifically stated that the status of marriage has been left to the states. 545 F.2d 1129 (8th Cir. 1976). Additionally, courts have ruled that the determination of a marriage’s validity should be strictly interpreted. United States v. Acker, 52 F.3d 509 (4th Cir. 1995).

In light of the above precedent, it isn’t difficult to imagine the outcome in the following hypothetical. Imagine a civil case in federal court where a gay and lesbian couple in a civil union or domestic partnership attempts to invoke privilege within that state’s jurisdiction. Now imagine opposing counsel argues that they are not allowed to invoke privilege, as they are not part of a valid marriage in that state. Clearly, the dispute becomes whether the state’s recognition of the gay couple’s union, as either a civil union or domestic partnership, should apply in this instance. Despite presumably valiant arguments and attempts by the gay couple’s attorney, given opinions like Acker, it seems highly probable that the court in this hypothetical would rule against the gay couple. This is especially so in light of Fed. R. Ev. 501’s advisory notes surrounding the reception of evidence – noting that where there is lack of clarity on the issue judges should default to letting the evidence/testimony in.

Given the difficult time that the couple would have with invoking privilege under the Federal Rules of Evidence, they would be left attempting to make a Constitutional claim. It would be wise of this attorney to cite the line of cases that led to Supreme Court decisions in Romer v. Evans, 517 U.S. 620 (1996) and Lawrence v. Texas, 539 U.S. 558 (2003). This is because the line of cases that led to Romer and Lawrence established the idea of privacy within the home. The theory behind spousal privilege is strikingly similar. Romer (primarily decided on an equal protection basis) and Lawrence (decided on due process grounds) grant some form of suspect class status to homosexuals, and arguably given them heightened scrutiny. Thus, it would be wise of the attorney in our hypothetical situation to at least attempt to make these arguments. See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), Griswold v. Connecticut, 381 U.S. 479 (1965), Eisenstadt v. Baird, 405 U.S. 438 (1972), and Roe v. Wade, 410 U.S. 113 (1973).

Our hypothetical attorney will face a challenge to this argument, however. This is because of the kind of sentiment expressed in United States v. Hicks, 420 F. Supp. 533 (N. Dist. Tex. 1976). In that case, the court inferred the spousal privilege to be one designed to protect interests as a matter of public policy and not due to their constitutional rights. The court interpreted the Supreme Court’s decision in Hawkins v. United States, 358 U.S. 74 (1958) to imply this. The clear counterargument to this position is that Hawkins was decided well before the Lawrence line of cases.

If this hypothetical were to occur in a state that recognizes gay marriage, it would seem to be the case that the couple can invoke privilege, provided that it is not a diversity case where an assertion of privilege would keep out information essential to both claims. This caveat is due to the issue that will be explored in the last section of this analysis.

Criminal diversity jurisdiction cases.

If the matter were one of federal diversity jurisdiction, it would be subject to the Erie doctrine; thus, the privilege issue would have to be decided pursuant to applicable State law. Accordingly, if this is a state that recognizes civil unions or domestic partnerships, this really doesn’t change much from the above analysis and the ability of the couple to invoke privilege. If this were a state that recognizes gay marriage, the couple could arguably invoke privilege – but again, this may not be the case – see below analysis.

State vs. Federal Law & State vs. State Law (Full Faith and Credit Clause)

Even in states where gay marriage is entirely equivalent to heterosexual marriage, married gay couples may not be able to invoke spousal privilege. Consider the notes to Fed. R. Ev. 501:

If the rule proposed here results in two conflicting bodies of privilege law applying to the same piece of evidence in the same case, it is contemplated that the rule favoring reception of the evidence should be applied.

Fed. R. Ev. 501. Thus, if the matter is one of federal diversity jurisdiction and there is a raising of privilege relating to information that would be essential to both claims, simply due to the fact that they are gay and federal common law has not recognized gay marriage could likely bar the ability of the couple to invoke privilege.

A further problem for gay couples that are married in one of the six states that recognize gay marriage is that, should they move or be sued in a state they weren’t married in and one that doesn’t recognize their union, they likely can’t even attempt to use spousal privilege.

The only possible counter to this is Article IV, Section 1 of the Constitution, commonly known as the “Full Faith and Credit Clause.” Essentially, the clause suggests that states must respect the judicial rulings of other states. There are two problems here. The first is that only two of the six states arrived at marriage through solely judicial means (Iowa and Massachusetts; California did as well – but that’s up in the air right now). Since the legislatures are technically the ones that established gay marriage in the other four states, most states are under no obligation (constitutionally) to observe such marriages. The second problem with this is that many states have adopted the Defense of Marriage Act, simply denying the legitimacy of these unions.

The current state of gay marriage in the United States presents very real problems for gay couples. Among these problems are those entangled with the Federal Rules of Evidence. Until gay marriage is ruled at on a federal level, the landscape for gay couples in court and their ability to invoke spousal privilege seems extremely dark.